FEDERAL CIRCUIT COURT OF AUSTRALIA
SZSJA v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 308	

Catchwords: 
MIGRATION – Refugee Review Tribunal – Whether the Tribunal should have adjourned – no jurisdictional error – summary dismissal – application dismissed.	

Legislation:  
Federal Circuit Court Rules 2001
Migration Act 1958	

Spencer v The Commonwealth of Australia (2010) 141 CLR 118	

Applicant:	SZSJA	

First Respondent:	Minister for immigration & border protection	

Second Respondent:	refugee review tribunal	

File Number:	SYG 169 of 2015	

Judgment of:	Judge Street	

Hearing date:	12 February 2015	

Date of Last Submission:	12 February 2015	

Delivered at:	Sydney	

Delivered on:	12 February 2015	

REPRESENTATION
Counsel for the Applicant:	In person	

Solicitors for the Applicant:	N/A	

Counsel for the First Respondent:	Ms Hillary	

Solicitors for the First Respondent:	DLA Piper	

ORDERS
(1)	The Application be summarily dismissed. 
(2)	The Applicant pay the First Respondent’s costs fixed in the sum of $700.  
(3)	The pseudonym of the applicant be altered to SZSJA.
(4)	The Registrar ensure that the appropriate steps in the registry are taken to record that change in pseudonym. 
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY	
SYG 169 of 2015
SZSJA	
Applicant

And

minister for immigration & border protection	
First Respondent

refugee review tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of which the applicant sought to raise grounds:
	1. RRT did not provide fairness to me.
	2. RRT should have reschedule the interview time.
	3. RRT forced me to attend the interview when there was a terrorist attack at Sydney CBD. I was under great pressure and fear and couldn’t remember anything. The horror was real. I suffer memory loss and couldn’t answer questions properly. 
2.	At the commencement of the matter before the Court today I identified to the applicant that none of the matters identified raised any jurisdictional error and whether any matters he wished to put as to why the matter should not be summarily dismissed.
3.	The applicant sought to identify that at the time of the hearing before the Tribunal there was a terrorist attack taking place in Martin Place, by reason of which he said that he could not properly answer the questions, said incorrect things and, in essence, the terrorist attack gave him a mental breakdown.   
4.	The second matter the applicant raised was that he had in fact engaged in activities contrary to his answers to the Tribunal. The applicant claimed that he had handed out newspapers, that there were photos on his file to that effect, and that his mother had passed away and he forgot about that because of the incident taking place in Martin Place.  The applicant also indicated he wanted to obtain the transcript of what occurred so that he could show how nervous he was in answering the questions.  I identified that none of those matters demonstrated any jurisdictional error and I asked whether there was anything further the applicant wished to put.  There was no other matter advanced. 
5.	The applicant then suggested that he should have further time to go back and search for more evidence.  I identified that this Court was not conducting a review of the merits and that more evidence was not a matter that supported any identified ground of jurisdictional error.  
6.	In this case the Tribunal’s decision delivered on 24 December 2014 carefully identified the claims for the Protection (class XA) visa under s.65 of the Migration Act 1958 for which the applicant had applied on 15 March 2012 and which was refused by the delegate on 19 July 2014.
7.	Materially, the applicant attended a hearing before the Tribunal on 14 December 2014 at a location in Clarence Street which a few streets away from the Martin Place tragedy at which Australia lost two good and courageous Australians, Katrina Dawson and Tori Johnson.  That tragedy occurred quite some distance from Martin Place and does not identify a proper ground of jurisdictional error relating to the conduct of the hearing before the Tribunal. 
8.	There is nothing in the Tribunal’s decision to suggest that any adjournment was sought of the hearing on that date.  The applicant was informed prior to the hearing that the Tribunal was not satisfied on the material before it that the applicant was entitled to protection under s.36(2A) or s.36(2AA) and the Tribunal invited the applicant to appear before the Tribunal. The hearing occupied 3 hours and the failure to seek an adjournment over the time frame means there was no denial of procedural fairness in the conduct of the hearing. 
9.	The Tribunal set out the evidence given by the applicant on that occasion and identified the country information.  The Tribunal had identified that the applicant is a national of the People’s Republic of China (PRC) and assessed the claims against the PRC as the country of nationality. The Tribunal in considerable detail addressed the credibility assessment of the applicant and in para.34 said:
	34. I do not accept the applicant has adequately explained the inconsistencies between his written statement and oral testimony. As I put to the applicant in accordance with the procedure under s 424AA, his evidence that he was detained for thirty days in 2010 was also inconsistent with the information he provided to the Department in his interview with the delegate, which as the delegate’s decision records, was that in the interview with the delegate the applicant stated he was arrested by the police on 7 January 2010 and he was interrogated for the whole night about his practice of Falun Gong and the next morning he was sent to a detention centre for fifteen days. As I put to the applicant, the inconsistency between his evidence to the delegate and the Tribunal indicated he had not been truthful in his evidence to the Tribunal and cast doubt upon the credibility of his claims. The applicant elected to respond in the information at the hearing. He said he had ‘many reasons’ he could not go back to China and if the Tribunal did not give him protection he would go to other countries as he could not go back to China. 
10.	The Tribunal continued in its analysis of the evidence and made findings in paragraph 44 and 45:
	 44. For the reasons set out above I do not accept that the applicant was ever a Falun Gong practitioner in China or that he associated with Falun Gong practitioners in China or that he was perceived by the Chinese authorities to be a Falun Gong practitioner or that he was involved in Falun Gong activity of any type in China. I do not accept that the applicant was ever detained or mistreated as claimed, or that he was subject to reporting obligations to the police, or that he went into hiding or that he was subject to monitoring or surveillance or harassment by the authorities or that he or his family members were ever harassed or mistreated because of his involvement in Falun Gong activity, or that his wide was approached by the authorities asking questions about the applicant when she returned to China, or that his mother died after being harassed by the authorities, or that his family members will be persecuted if they return to China. I do not accept that he was sacked from his employment because of his involvement in Falun Gong activity or that he was detained because he was identified as a Falun Gong practitioner or for any other reason. I find that the applicant has fabricated his claims that he was involved in Falun Gong in their entirety in the hope of obtaining a protection visa. I find that at the time the applicant left China the only profile he had with the Chinese authorities was that of an ordinary Chinese citizen. 
	45. I do not accept that the applicant had any involvement or association with Falun Gong activity or Falun Gong practitioners in China. I consider that the knowledge that he has been able to demonstrate about Falun Gong was acquired in Australia. Although his written statement states the applicant hopes Australia will grant him protection so he can go on practising his belief in Falun Gong, his own evidence indicates that his involvement in Falun Gong activity in Australia has been extremely limited. For example, when asked about his Falun Gong activity in Australia, he said he practised in Auburn. Asked how long he practised in Auburn he said he went there on several occasions. He estimated he had been to Auburn practise centre two or three times. Asked whether he had been involved in other Falun Gong activity, he said there is a big hall in Burwood close to the station and he went there two or three times. Asked whether he engaged in any other Falun Gong activity in Australia, he said no. Asked specifically whether he had distributed any Falun Gong materials in Australia, he said he had distributed Falun Gong material four or five times at Auburn railway station. Asked whether he knew any Falun Gong practitioners in Australia, he said he knew a person called FCC and Helen- he added he did know the other people's names.
11.	In paras.49 and 52 the Tribunal made further findings and concluded:
	49. After carefully considering the applicant's evidence about his Falun Gong activity in Australia, I am not satisfied that he has engaged in these activities otherwise than for the sole purpose of strengthening his claims to be a refugee. In accordance with s91R(3) of the Act, I have disregarded the applicant's conduct in participating and engaging in Falun Gong related activities in Australia (including attendance of classes, distribution of materials and acquisition of knowledge about Falun Gong) for the purpose of assessing his claims to be a refugee. I find the only profile he had with the Chinese authorities at the time he left China was that of an ordinary citizen. I do not accept that the applicant has any genuine interest in Falun Gong practice and I find that his knowledge of Falun Gong has been acquired for the sole purpose of strengthening his claims to be refugee. Because I do not accept the applicant is a genuine Falun Gong practitioner, I do not accept he would practice Falun Gong if he were to return to China. I do not accept that there is a real chance that he will be persecuted for his political opinion (real or imputed) or for his real or perceived involvement in Falun Gong (whether this is regarded as falling under the Convention ground of religion, imputed political opinion, or membership of a particular social group) if he returns to China now or in the reasonably foreseeable future.
	…
	52. I do not accept there is a real chance the applicant will suffer harm of any type of the reasons claimed if he were returned to China, and I’m not satisfied there is a real chance that the applicant will face serious harm for the purpose of the Convention either now or reasonably in the foreseeable future if he returns to the country.  The applicant is not a refugee.
12.	The Tribunal then turned to the complimentary protection criteria:
	55. While the applicant has maintained that he is a Falun Gong practitioner, for the reasons set out above I do not accept that he is now or ever was a genuine Falun Gong practitioner. I have found that, if he returns to China, he will not practise Falun Gong or having any involvement with Falun Gong practitioners. On the evidence before me, I t am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will attract the adverse attention of the Chinese because of his limited involvement in the Falun Gong activity in Australia.
	56. In the course of the hearing the applicant raised concerns of general nature about corruption in China, terrorism in China, and the forced demolition of property in China. He was advised that the Tribunal had difficulty understanding how he was personally affected by these issues. His evidence about these issues was vague and speculative, and I am not satisfied that there is a real risk that he will face harm of any type for any of the reasons claimed. The applicant's evidence does not indicate that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real he will suffer significant harm.
	57. Having considered all possible grounds upon which it might be suggested the applicant is entitled to complementary protection, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act, if he returns to PRC.
	CONCLUSION
	58. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
	59. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
	60. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
	DECISION
	61. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.
13.	The findings made by the Tribunal were clearly open on the material before it.  This is not a Court of general review.  The Court’s power to grant a Constitutional writ is confined to jurisdictional error.  There is clearly no arguable jurisdictional error.  There is an evident and intelligible justification for the findings identified by the Tribunal and there is no apparent jurisdictional error in the conduct of the review or the determination.  There is no substance in the contention identified in the application that the Tribunal did not “provide fairness to me”.  The Tribunal clearly complied with the statutory scheme of procedural fairness and there is no substance in the first ground and it does not identify any arguable jurisdictional error.
14.	The proposition that the Tribunal should have rescheduled the hearing is based on the assertions relating to the tragedy in Martin Place that was several streets away.  No application was made for adjournment before the Tribunal. The assertions of the applicant do not amount to a jurisdictional error and it was clearly a matter for the Tribunal to determine whether it wished to proceed.  There was no denial of procedural fairness in conducting a hearing in respect of which no application for adjournment was made. Rather, the tragedy was an attempted explanation for poor answers which in the finding of facts were matters for the Tribunal to weigh and determine. Ground 2 identifies no jurisdictional error.  Ground 3 asserts that the applicant was forced to attend and identifies that he was under great pressure and fear and couldn’t remember anything and that the horror was real and that he suffered from memory loss and couldn’t answer any question properly. 
15.	The applicant was not forced to attend rather the hearing was an opportunity for the applicant to be heard and the alleged pressure, memory loss and inability to answer questions does not sit with the failure to seek an adjournment. In any event it was for the Tribunal to evaluate the answers to questions by the applicant and the credit of the applicant, which was an issue clearly notified to the applicant prior to the attendance at the hearing.  The findings of the Tribunal in relation to credit of the applicant were clearly open and there is no jurisdictional error by reason of ground 3. Further, none of the matters that were identified from the bar table identify any jurisdictional error. I am clearly satisfied that there is no utility in any adjournment and that standing the matter over will simply incur further unnecessary costs contrary to the objectives of the Federal Circuit Court Rules 2001, r.1.03(1).  
16.	I take into account the principles and caution that must be exercised in relation to a summary dismissal identified by the High Court in Spencer v The Commonwealth of Australia (2010) 141 CLR 118:
	24. The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said[48]:
	"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".
	More recently, in Batistatos v Roads and Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] which included the following:
	"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[51], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
	There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.
	25. Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. 
	…
	59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
	60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
17.	In the above circumstances there is no arguable jurisdictional error. There is no arguable denial of procedural fairness. I am clearly satisfied that the applicant’s application has no reasonable prospect of success.  The application is summarily dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  23 February 2015